The staff of the Committee on Open Government is authorized to
issue advisory opinions. The ensuing staff advisory opinion is
based solely upon the information presented in your correspondence.

Dear Mr. Risman:

I have received your letter of April 27 in which you requested
an advisory opinion concerning a denial of a reuest for a record.

According to your letter, you and your wife met with the
Town/Village of Lake George Consolidated Board of Health "to
discuss building a deck on [y]our house..." Soon thereafter, you
contacted the office of the Town Supervisor and spoke with his
secretary for the purpose of requesting a tape recording of the
meeting. You were informed by that person that "the Supervisor
'told [her] not to release any record to you', and 'the tape
recorded record is [her] own personal property' and 'you cannot
have a copy'."

In this regard, I offer the following comments.

First, the Freedom of Information Law pertains to agency
records, and §86(4) of the Law defines the term "record"
expansively to include:

The Court of Appeals, the State's highest court, has construed
the definition as broadly as its specific language suggests. The
first such decision that dealt squarely with the scope of the term
"record" involved documents pertaining to a lottery sponsored
by a
fire department. Although the agency contended that the documents
did not pertain to the performance of its official duties, i.e.,
fighting fires, but rather to a "nongovernmental" activity,
the
Court rejected the claim of a "governmental versus nongovernmental
dichotomy" [see Westchester Rockland Newspapers v. Kimball, 50
NY
2d 575, 581 (1980)] and found that the documents constituted
"records" subject to rights of access granted by the Law.
Moreover, the Court determined that:

"The statutory definition of 'record' makes
nothing turn on the purpose for which it
relates. This conclusion accords with the
spirit as well as the letter of the statute.
For not only are the expanding boundaries of
governmental activity increasingly difficult
to draw, but in perception, if not in
actuality, there is bound to be considerable
crossover between governmental and
nongovernmental activities, especially where
both are carried on by the same person or
persons" (id.).

In another decision rendered by the Court of Appeals, the
Court focused on an agency claim that it could "engage in
unilateral prescreening of those documents which it deems to be
outside of the scope of FOIL" and found that such activity "would
be inconsistent with the process set forth in the statute" [Capital
Newspapers v. Whalen, 69 NY 2d 246, 253 (1987)]. The Court
determined that:

"...the procedure permitting an unreviewable
prescreening of documents - which respondents
urge us to engraft on the statute - could be
used by an uncooperative and obdurate public
official or agency to block an entirely
legitimate request. There would be no way to
prevent a custodian of records from removing a
public record from FOIL's reach by simply
labeling it 'purely private.' Such a
construction, which would thwart the entire
objective of FOIL by creating an easy means of
avoiding compliance, should be rejected" (id.,
254).

Further, in a case involving notes taken by the Secretary to
the Board of Regents that he characterized as "personal" in
conjunction with a contention that he took notes in part "as a
private person making personal notes of observations...in the
course of" meetings. In that decision, the court cited the
definition of "record" and determined that the notes did
not
consist of personal property but rather were records subject to
rights conferred by the Freedom of Information Law [Warder v. Board
of Regents, 410 NYS 2d 742, 743 (1978)].

Based upon the foregoing, since the Supervisor's secretary
recorded the meeting in furtherance of the performance of her
duties, I believe that the tape recording in question falls within
the coverage of the Freedom of Information Law.

Second, as a general matter, the Freedom of Information Law is
based upon a presumption of access. Stated differently, all
records of an agency are available, except to the extent that
records or portions thereof fall within one or more grounds for
denial appearing in §87(2)(a) through (i) of the Law. In my view,
a tape recording of an open meeting is accessible, for you were
present, and none of the grounds for denial would apply. Moreover,
there is case law indicating that a tape recording of an open
meeting is accessible for listening and/or copying under the
Freedom of Information Law [see Zaleski v. Board of Education of
Hicksville Union Free School District, Supreme Court, Nassau
County, NYLJ, December 27, 1978].

Lastly, since a person present at an open meeting of a public
body could have tape recorded the proceedings [see Mitchell v.
Board of Education of the Garden City Union Free School District,
113 AD 2d 924 (1985)], I do not believe that there would be a valid
basis for withholding the tape, particularly since you were
present.